### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 7 -00 588 -CR

Thom as Ja m e s N e gr i , A ppe lla nt

v . The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF LLANO COUNTY , 33RD JUDICIAL DISTRICT NO. CR5740 , HO NORAB LE DANIEL H. M ILLS , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N A j ur y fou nd app e lla

nt T ho ma s Jam e s N e g ri g uil ty of mur de r a

nd a sse sse d h is punishment at twenty

y ear s’ imprisonment. See Tex. P enal Code A nn. § 19.02 (West 2003). Ap pe lla nt c on te nd s th a t the e vid e nc e is l e g a lly and fa c tua lly ins uf fi c ie nt t o s us ta in t

he g uil ty ve rd ic t,
and that th e State fa ile d to pr ov e that ven ue wa s p ro pe r i n L lano County . We ov e rr ule the se contentions and a ffirm the judg ment of convic tion.
EVIDENCE Shi rley Cowan’s Disappearance The de cea sed, Shirley Cowan, was appellant’ s mother-in-la w. Cowan disappea

red without a trac e in J anuar

y 2001. The indictment acc using appellant of Cowan’s murder w as filed in Dece mber 2005, a

nd he wa s tried in J uly

2007.Cowan’s thi rd child, a son, prede cea sed her . We spell all names as they appea r in the re porter’ s 1 rec ord. 2

At the time of her

disappea ranc e, Cowan, a

si x t y -y ea r- old widow, was living in a tr a ile r p ark

in Aus tin . Co wa

n h a d tw o d a

ug hte rs , K are n Jac k, wh o l iv ed in Roc kp or t, a nd Te re sa Neg ri, appe llant’s wife, w ho lived with him and their children in Bur net. By all acc ounts, Cowan 1 ha d a qu ic k te mpe r a

nd c ou ld b e dif

ficul t to de a l w ith . F or

e xamp le , Co wa

n d id n ot s pe a k to appellant or

Tere sa for

four y ear s in the mid-1990s as a re sult of ha rd fee lings arising from a fa iled business arr ang ement betwe en Cowan, he r late husba nd, and appellant. I n 2000, howeve r, Cowan hir e d a pp e lla nt t o be the g e ne ra l con tr a c tor on a “ sp e c ” ho us e sh e wa nte d to buil d on a g olf

c ours e
near King sland. By

J anuar y 2001, the house was near ing completion, but there w as testimony that Cowan was not satisfied with the quality of the wor

k, and that she w as planning to remove a ppellant from the job and r eplac e him with her brothe r-in-la w, Nelson Cowan. Cowan wa s last seen by Nat as h a Stieler, Kar en Jack’s daug hter a nd Cowan’s g randda ug hter, who a lso lived in Austin. S tieler testified that she was very close to Cowan, spoke to her at least once a we ek o n t h e telephone , and ofte n visited her. Stieler ha d dinner at Cowan’s residenc e on Sunday

night, January

14, 2001. Stieler testified that she br oug ht two rented movies wi th h e r t hat ni g ht a

nd that sh e and

Cow an w a tc he d o ne of

the m a ft e r d inn e r. Th e y ma de pla ns to meet ag ain for dinne r on Wednesday night, whe n they

would watch the second movie. Cowa n pr omi se d to mak e sp ag he tti , o ne of Stie le r’ s f

a vo ri te dis he s, and

Stie le r s aw C ow an ta

ke so me g round meat from the fr eezer to thaw. On Mo nd ay or Tu e sd ay , St ie le r he ard fr om he r mot he r that, a c c or din g to a

pp e lla nt, Cowan had c alled appe llant on Sunday night a nd told him t hat she ha d decide d to go t o “theTh e re is e vid e nc e that Co wa n o ft e n v a c a tio ne d in

the Cay man I sla nd s. 2 The two dog s had belong ed to Cowan’s late s o n, and all the witnesse s who knew Cowa n 3 testified to her g reat love for the a nimals. John Ruc ks , the tr a ile r park mana g e r, te sti fi e d tha t Cowa n’ s re nt wa s pai d, and that she ha d s a id 4 n o t h i n g t o h i m ab o u tl ea v i n g. 3 isl a nd s. ” Stie le r t e sti fi e d that sh e fo un d th is o dd be c a us e Cow an h a d s a id n oth ingto h e r t o in dic a te 2 that she wa s pl an n i n g t o t ak e a trip, and that she had see n no lugg ag e or othe r evide nce of trave l plans. Stieler was f

urther surprised to hear that Cowan had left her two dog s behind in appellant’s
car e rather than taking the m with her, as she alway s did when she trave led. L ater that wee k, Stieler 3 borrowe d the key

to Cowan’s trailer

from Te resa

Neg ri so she could re trieve he r re nted movie, which she had le ft at the tra iler in anticipation of the Wednesda y night dinner . Stieler testified that whe n she ente re d t h e t ra i l er, she “knew something w as wrong .” Cowan w as, ac cordingto Sti eler , a fastidious housekee per, but the dirty dishes from the pr evious Sunday night wer e still in t he sink and the g round meat was beg inning to g o bad in the re frig erator.

Ka re n Jac k te sti fi e d that sh e , too , wa s surp ri se d to le arn that Cow an h ad s ud den ly decide d to go on va cation. Ac cordingto J ack, Cowa n would no t have le ft without telling Jack of her pla ns, and she would not have left her dog s. J ack also testified that appe llant told her that Cowan had instructed him to move her trailer and car from the trailer pa rk. This conc erne d J ack be cause , as she e x plained, “ [Appellant] told me that she was coming back on the 29th. Where wa s she g oing to live and how was she g oing to g et off this airplane if her trailer and her car [ wer e] g one.” Jack testified that appe llant and Ter esa moved Cowan’s trailer and car from the trailer park on January 23. The evidenc e shows that they first took the trailer to the building site near King sland, and late r 44

moved it to their residenc e in B urnet. Jack testified that ap p el l an t l at er told her that Cowan had instructed him to sell the trailer be cause she wa s out of money . On J anuar y 31, 2001, J ack c alled t h e p o l i ce t o re p o rt C o wa n m i s s i n g. Nelson Cowan testified that he l ast saw his s ister-in-law on J anuar y 11, 2001. On that da y , h e dr ov e Cow an to Ki ng sla nd to l oo k at the ho us e un de r c on str uc tio n. Cow an e xpre sse d to him he r d isp le a sure wi th a

pp e lla nt’ s w or k— sh e wa s “ ma d a s he ll” —a nd he r d e sir e to h a ve Ne lso n f ini sh the pr oje c t. Nel so n als o d ro ve Cow an to a

pp e lla nt’ s h ou se , w he re sh e int e nd e d to a sk Te re sa to return the extra key

to Cowan’s saf

e deposit box. Nelson t est ified that Cowan told him she had $3 00 ,0 00 in t

he bo x. Th e ba

nk mana g e r t e sti fi e d th a t Co wa n h a d le a se d th e sa fe de po sit bo x in October 2000, and that only

Cowan and Te resa

Neg ri wer e author ized to open it. Bank re cords showed that Cowan w as the only person to open the box until J anuar y 16, 2001, when Te resa

opened it for the first time. Ter esa a lso opened the box on J anuar y 31 and F ebrua

ry 14, 2001. Texas Rang er Matthew L inderman, w ho led the inve stigation into C owan’ s disappea ranc e, testified that Cowa n’s telephone re co rds s howed that the la st call made w ith her phone wa s on the nig ht of J anuar y 14, 2001, to appellant’ s phone number. There was no re cord of Cow an o r any one else using he r telephone or her cre dit cards since that date. The only chec ks written on Cowan’ s bank ac count af ter he r disappea

ranc e we re s i gn ed by

appellant, who w as authorized to do so.
Blo od at t he King sla nd H ous e Bob H ol b ro o k t est ified that he w as hired by appellant to do the c abinets at the King sland house. Holbrook w as pre sent when, after the ca binets had bee n hung and painted, Cowa n5

visited the house with appellant. Cowa n did not like the color and de manded that the cab i nets be
re pa int e d. Ho lbr oo k s a id t hat a pp e lla nt t old him no t to wo rr

y and that a pp e lla nt w ou ld pa

y him to repa int the cabinets. Holbrook te stified that he could hear appellant and Cowan talk as they walked throug h the hou s e t h at d ay , and she w as “pr etty upset about quite a f

ew thing s in the house.” Holbrook testified that Cowan w as “r eal short” and “a busive” with appe llant. Holbroo k s ai d that Cow an’ s r e mark s d id not seem to b oth e r a pp e lla nt, wh o “ jus t ki nd of sto od ba c k a nd no dd e d h is head like e very

thing wa s okay . I f she wa nted any thing r edone, it wa s fine to re d o it, y ou know,
ever y body be paid, no pr oblems.” Holbrook testified that a

ppellant ca lled him one day when the h o u se wa s near ing
c omp le tio n a

nd ins tr uc te d h im n ot to com e to wo rk the ne xt day , w hic h H olb ro ok be lie ve d w a s a Sa tur da y . App e lla

nt tol d Hol br oo k tha t he an d Cow an we re g oin g to me e t to dis c us s th e “ fi nis h- up s”
and la st p ay me nt, and that he wa

nte d th e me e tin g to be pr ivate . App e lla nt a sk e d H olb ro ok

to c ome back on Sunday

to finish his work, and Holbrook a g ree d. Holbrook testified that whe n he re turned to the job on Sunday , he noticed that the cabine ts ha d been de nted in sever al place s. He a lso noticed “spec kles” on the c abinets, which he suspected w as p ai n t mold. Holbrook saw a la rg e amount of whi t e p aint on the unfinished conc rete floor of the house. As desc ribed by Holbrook and othe r witnesses, and shown by photogr aphic evidenc e, this pa int f ormed a trail that ran f

rom the kitchen, throug h the living r oom, and into the master be droom closet. Holbrook te stified t h at he noticed
sma ll s po ts o f r e d o r b ro wn c olo r i n th e pa int
. Ho lbr oo k te sti fi e d th a t he a sk e d a pp e lla nt, wh e n h e arri ved at

the ho us e that sa

me day , what had ha

ppened the d ay

befor e. Ac cordingto Holbrook, appe llant told him that he and Cowan had “ a little alterc ation in the kitchen.” A s ap pellant desc ribed it, Cowan “swung at6

[appe l l an t ] wi t h a piec e of pipe and he duc ked bac k, she missed him, and she cut he r hand on the
e dg e of that c a bin e t f a c ingand ha d w a lke d f

ro m th e kit c he n in to t

hat—t hr ou g h th e liv ingro om i nto the master be droom into the closet cr y ing.” Appellant told Holbrook t h at C o wa n had bee n
e mba rr a sse d b y

thi s in c ide nt, and

that sh e tol d a

pp e lla nt s he wa s g oin g to g o o n v a c a tio n a nd c ome back w hen the house was c ompleted.

B e nit a B lare , w ho wa s th e n ma

rr ie d to Ho lbr oo k a

nd of te n h e lpe d h im o n h is j ob s, testified that she remember ed Holbrook calling her f rom the King sland job site—she rec alled the da y as a Tue sday

—to report the da

mag e to the ca

binets. Blar e drov e t o t he site and e x amined the damag e. B lare testified that the cabine ts “ wer e busted on the top half of the cabine t and towar ds the floor on the side pa

rt of the c abinet.” I

n addition, “there wer e these littl e spec kles along the ca binet that looked like somebody had deliberately taken a paint brush wit h white paint and just dabbed the m on his cabinets and in that white pa int was black circ les.” Bla re a lso noticed the trail of w hite paint that ran f rom the kitchen to the be droom closet. B lare testified that the white paint cove red the floor
o f t h e cl o s et , as if “somebody had take n a whole g allon of white pa int and just dumped it on t he floor.” B lare said that the paint trail did not appea r to be a n acc idental spill, but “ver y deliberate.” Bla re te stified that she touche d some of the “ black spots” on the c abinets and in the paint trail, and “it was de finitely

blood.” Br y an Thurma

n testified that he wa s hired by appellant to install t he ca

rpet a nd floor tile at the King sland house. Thurman said that appellant called him on a S aturda y night a nd asked if he co u l d s t ar t wo rk the next day . When Thurman ar rived at the site, the ca

rpet pa dding ha d alre ady been installed. This, a ccor ding to Thur man, was “ a re al bac kwar ds way of doing things.” Appellant told Thurman that he had put down the pa dding “ to speed the pr ocess o f t he job up.”7

Thurman r eca lled that there was white pa int on the kitchen floor, a nd that it looked as if someone had spilled the paint and r olled or mopped it rathe r than c lean it. Thurman te st i fi ed that he aske d
a pp e lla nt i f h e wa

nte d T hurm an to sc ra

pe up the pa int

be fo re lay ingthe til e , a

nd a pp e lla nt t old him not to. Appellant told Thurman that he wa s in a hurr y to finish the house befor e his mother-in-la w returne d from her

vaca tion. Rang er L inderman te stified t h at appellant never told him about the ar g ument he
c la ime d to hav e had wi th C ow an in the kit c he n, or

that Co wa

n h a d c ut h e r f

ing e r w hil e tr

y ingto strike appe llant with a pipe. L i n d er m an also testified that appe llant never mentioned the tra il of white paint, and that its e x istence was broug ht to his attention by appellant’ s children. L inderman, Travis County

Sheriff’ s detec tive Chris Orton, and other office rs subseque n t l y conducted two
sear ches of

the King sland house. On Ma y 4, 2001, the ca

rpet a nd padding wer e pulled bac k to reve al the paint o n the floor of

the living r oom and bedr oom. On May 21, 2001, some of the tile in the kitchen wa s remove d to r evea l the paint on the floor of that room. Photogra phs of the paint trail and the ca binets made duringthese sea rche s were introduced in e vidence
. Th e of fi c e rs te sti fi e d th a t lumin ol s pr ay and oth e r pr e su mpt ive te sts of the pa int tr a il
we re po sit ive fo r b loo d. Or ton te sti fi e d th a t th e larg e st a mou nt o f p a int wa s on the c los e t f loo r i n the ma ste r b e dr oo m. O rt on sa id t hat w he n lumin ol w a s sp ra y e d o n th is p a int , “ the wa y it lit u p, it looked—what I

saw wa s a body

in the feta l positi on.” Orton testified t hat i n his opinion, someone sti ll a liv e ha d lo st a

su bs tanti a l amou

nt o f b loo d w hil e lyingin t he c los e t. O rt on ’s de sc ri pti on of thi s lum ino l im a g e wa s c on fi rm e d b y Jo sep h Fl or e s, an e vid e nc e te c hn ic ian w ho pa rt ic ipate d in the sea rch.8 Th e inv e sti g a tor s to ok

a larg e numbe r o f s c ra

pin g s f rom th e pa int

tr a il. Th e y

a lso
remove d portions of the wallboar d in the kitchen containing suspected blood spots. S u b s equent laboratory

tests confirmed that the s pots in the paint and on the wa llboard we re blood. A D NA expert testified that by

using a sample of Ka

ren Jack’s sa liva, he wa s able to dete rmine with 99.9 perc ent ce rtainty

that the blood found in the hous e was Cowan’s. A fe w of the blood spots containe d a mix ture of Cowan’s DNA and DNA from another uni dentified person. Appellant’s DNA was not found in any

of the samples taken fr om the house. Raymond Rus se ll Ray mon d Rus se ll wa s the e le c tr ic a l su bc on tr a c tor a t the Ki ng sla nd ho us e . Ru sse ll testified that he spoke to Cowan onl y once, soon afte r appellant hired him, and that she e x presse d the opinion that he was not w orking fast enoug h. Either that same day or a fewday s later, a ppellant tol d Ru sse ll, a ft e r a

me e tin g wi th C ow an, that “he wo uld be be tte r of f i f s he we re de a d. ” As Rus se ll
rec alled the c onversation, he replied, “ [Y] eah, you can’ t live with them and y ou can’ t kill t hem. And [appellant] said y eah, y ou can; and I said, well, no there ain’t nobody worth g oing to pr ison for; and he said, we ll, if they

never find a body , y ou don’t have to worry about it.” Russell also remember ed see ing the white paint on the floor of the hous e. He noticed it on a day

when he went to the job site to retrie ve a r oll of wire and a conduit bender , a tool which he desc ribed a s a “thre e-qua rter- inch pipe” a

bout four fe et long that is “ threa ded on one e nd with a handle e nd on the ot her.” Cowan’s car was parke d in the driveway , preve nting Russ ell from bac king in h is tru c k. Ap pe lla

nt, wh o w a s th e re , to ld R us se ll that he wa s d

ri vin g Cow an’ s c ar b e c a

us e his tr uc k “ wa s in

kin d o f b a d s ha

pe .” Rus se ll te sti fi e d that he c ou ld no t f ind his c on du it b e nd e r. Rus se llThe e vidence ref lects t h at R u s s el l was convicted in 1995 and plac ed on probation. That 5 probation wa s revoke d in 2002. 9 said that he re turned to the house a fewday s later to inst al l s ome fixt ures a nd plugs. The car

pet padding was a lrea dy

down, which he said was “a l ittle unusual beca use y ou g et l ittle snips of wire and junk under

the padding , y ou know, it’s hard to swe ep up.” J ohn Rucks, the manag er of the tra i l er park whe re Cowa n lived, testified that he
rec alled seeing a gra

y -haire d, g ray -bea

rded man driving Cowa

n’s ca r. Russell acknowle dg ed that he had a full, g ray bear d at the time he wa s working at the K i n gsland house. Mike Holbrook ( no relation to Bob Holbrook) te stified that during the summer of 2001, he argued with Russell at a bar
ov e r m on e y

Rus se ll o we d him. Ho lbr oo k s a id t hat Ru sse ll b e c a me “ ve rb a lly a bu siv e ” and

sa id, “ I ’l l bury y ou jus t li ke Iburi e d th a t ol d w oma n. ” An oth e r w itn ess c on fi rm e d H olb ro ok ’s a c c ount. Russell testified that he did not know where Cowan lived and never drove her car except to move it once at the Kingsland construction site. Russell denied making the statement attributed to him by Mike Holbrook. At the time of a ppellant’s trial, Ru s s el l wa s servinga prison sente nce f or the ag g ravated assault of his wife
. 5
Mis sing Pe rso n Re

po rt Heidi Fishe r, the supervisor of the Texas Depa

rtment of Public Safety ’s missing pe rs on s c le a ri ng ho us e , te sti fi e d that wh e n a pe rs on is re po rt e d mis sin g , h e r o ff ic e c on du c ts d a ta

ba se
sear ches, coordinates with othe r law enfor ceme nt a g encie s, and disseminates information to news org anizations in an effor

t to ge nerate leads. I n Fe bruar y 2005, four y ear s after

Cowan disappea

red, the c le ari ng ho us e re c e ive d a tel e ph on e c a ll fr om Joy c e Na sh , who liv e d in Da y ton , in Ea st T e xas.10

Nash ha d seen a

photogr aph of Cowa

n at the cle aring house we bsite and believe d that she mig ht have seen Cowa

n in a Day

ton store. Fisher testified t hat s he tol d L inderman about Nash’s c all, and that she followed up the call by arr ang ing to have stories about C owan, with photogra phs, run in Day

tonare a ne ws pa pe rs . T his e ff

or t pr od uc e d n o le a ds
. Nash, c alled by

the def ense, te stified that she wa s 99 perc ent ce rtain that the pe rson sh e saw i n 2 00 5 w a s Co wa n. She a c kn ow le dg e d d

ur ingc ro ss- e xami natio n, ho we ve r, that sh e tol d L inderman in 2005 that she ha d hesitated to ca ll and that the per son she saw “ might just be someone that looked like [Cowan] .”
LEGAL SUF F ICIENCY

When there is a c hallenge to the sufficie ncy of the e vidence to sustain a criminal conviction, the question prese nted i s whether a rational trier of f act c ould have f

ound the essential elements of the offe nse beyond a re asonable doubt. J ac k so n v . V irg ini a , 443 U.S. 307, 324 (1979); Cla y ton v . S tat e , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007). This standard a pplies in both direct and cir cumstantial evidenc e ca ses. Bu rd e n v . S tat e , 55 S.W .3d 608, 613 (Tex. Crim. App. 2001); Gr e e n v . S

tat e , 840 S.W .2d 394, 401 (Tex. Crim. App. 1992). I n a leg al sufficie ncy revie w, all the evidenc e is revie wed in the lig ht most favorable to t h e v er d i ct ; i t is assumed that the trier of fac t resolved c onflicts in the testimony , weig hed the e vidence , and dre w re asonab l e i n ference s in a
manner that supports the verdic t. Clayton , 234 S.W .3d at 778. The c orpus delicti of murder is established if the evide nce show s the death of a human beingcause d by

the cr iminal act of a

nother. F

i s h e r v . Sta te , 8 5 1 S.W .2d 298, 303 (Tex. Crim. App. 1993). Appellant does not dispute that Cowan is dead, but he contends that the11

State fa i l ed to prove that she was intentionally killed. We disagr ee. Cowa n’s sudden a

nd total dis a pp e ara nc e , th e dis c ov e ry

of Cow an’ s b loo d at th e Ki ng sla nd ho us e , a nd the ob vio us e ff

or t to hide that blood are more than suf ficient to wa

rra nt the conclusion beyond a re as o n able doubt that Cowan wa s the victim of an intentional homicide.

Appellant argues that if Cowan was murdere d, the evidenc e g ives strong er suppor t to the theory that Russell wa s the murdere r. Appellant asser ts that Russell “had the opportunity , the violent t em p erament, and a dmitted his crime befor e two ey ewitnesses,” the latter a ssertion a
re fe re nc e to t

he state me nt, den ied by

Rus se ll, a

bo ut b ur y ing“ the old

wo man. ” Ap pe lla

nt a lso sug g ests that Russell wa s the bear ded man seen by Rucks driving Cowan’s c ar. A ppellant contends that the only

rea son he wa s acc used of the mur der, a nd not Russell, is that the investig ating office rs
arb itr ari ly de c ide d to bu ild

the ir c a se a g a ins t a

pp e lla nt. Ap pe lla nt’ s argume nt f

a ils be c a us e , in e sse nc e , he a sk s us to re vie w the e vid e nc e in the lig ht mos t fa vo ra

ble to Rus se ll’ s g uil t, rathe r tha n in th e lig ht m os t f

a vo ra ble to t he jur y ’s ve rd ic t. Al though the evidenc e cited by appellant mig ht cast a sha dow of suspicion on Russell, it was not
unrea sonable for

the jury to discount that evidence and to conc lude instead that a ppellant murder ed Cow an. Rus se ll ha d no obv iou s motiv e to kil l Co wa n, wh ile a pp e lla nt w a s sh ow n to have se ve ra l: the money

his wife stood to inherit, the souring of his business relationship wi t h Cowan, and the ang er h e f

e lt a s a r e s u lt o f Co w an ’ s ma

n y c o mp la in ts a

b o u t t h e qu a li ty

o f a p p e ll an t’ s w ork. Moreove r, appe llant’s attempt to shift the blame to Russell fa ils to acc ount for the c ircumstance s that most incriminate appellant: (1) appellant’ s story that he and Cowa n had an a rg ument in the kitchen duri ngwh ic h s he c ut h e rs e lf and the n h id i n th e be dr oo m c los e t, w hic h w a s a n o bv iou s atte mpt

to
e xpla in the pr e se nc e of Cow an’ s blo od in the ho us e , and (2 ) a pp e lla nt’ s sto ry that Cow an c a lle d h im12

to say that she wa s g oing on a vacation, a call she could not have made if she were dead. A ppellant would have ha d no rea son to tell these stories if Russell had murder ed Cowan.

Viewingthe circ umstantial evidence in the light most f a v o r a b le to th e v erdic t, the jury could re asonably

co n c lu d e th a

t: ( 1) appe llant broug ht Cowan to the King sland house and bludg eoned her in the kitche n, possibly with Russell’s mi ssing c onduit bend er , damag ing the cabine ts and splattering blood in the proce ss; (2 ) appellant c arr ied or dra g g ed Cowan f rom the kitchen to the be dr oo m clo se t, wh e re sh e ble d an d die d; (3 ) ap pe lla nt tr ie d to hide Cow an’ s b loo d o n th e c a bin e ts
and fl oo r w ithpa int

and , w he n th a t di d n ot w or k, ma de up th e st ory abo ut Cow an c utt inghe rs e lf during an ar g ument and hiding in the closet in embar rassment; and ( 4) to explain Cowan’s sudden disapp e ar an c e , a

p p e ll an t a ls o ma d e u

p th e s to r y a b o u t t h e te le p h o n e c a ll an n o u n c in g h e r s u dden decision to take a

vacation. The evidenc e is leg ally sufficie nt to sustain the jury ’s ver dict convicting appellant of

Cowan’s murde r. I ssue one is over ruled.
F ACTUAL SUF F ICIENCY I n a fa ctual suff

iciency revie w, all the evide nce is considered equally , including the testimony of def ense w itnesses an d the exist ence of alter native hy potheses. Cle wis v . S

tat e , 92 2 S. W.2 d 1 26 , 1 29 (T e x. Cr im. Ap p. 19 96 ); Or on a v. State , 836 S.W .2d 319, 321 (Tex. App.—Austin 1992, no pet.). Althoug h due def ere nce stil l must be accor ded the fact finde r’s deter minations, particularly

those conc erningthe weig ht and credibility of the e vidence , the re viewing court may disag ree with the result in o rd er to preve nt a manife st injust ice. J oh ns on v . S

tat e , 2 3 S. W.3 d 1 , 9 (T e x. Crim. Ap p. 20 00 ); Cai n v . S tat e , 958 S.W .2d 404, 407 (Tex
. C ri m. App. 1997). The e vidence will be deeme d fac tually insufficient if the e videnceAlthough the re is evidence that Cowan’s relations with her daug hters were sometimes strained, 6 the evidence shows that she had close a nd confiding relationships wit h her g randda ug hter Natasha Stie le r, he r b ro the r- in- law N e lso n Co wa n, and he r l on g -t ime fr ie nd

Me ri da Zeek. E a c h o f t he se persons testified that he or she spoke to Cowan regularly and would have know n if she had tr avel pla ns . T he y a lso a g re e d th a t Co wa

n w ou ld n e ve r h a ve a

ba nd on e d h e r d og s. 13 su pp or tin g the ve rd ic t is so we a k a s to make the fi nd ingof g uil t cle arl y wr on g or manif e stl y un jus t. W ats on v . S tat e , 2 04 S.W. 3d

40 4, 41 4- 15 (T e x. Cr im. Ap p. 20 06 ); Johnson , 23 S.W .3d at 11. Appellant ar g ues that, viewe d in a n eu t ra l light, the motive evide nce w as ins ub sta nti a l. T o c ounte r t

he su g g e st io n tha t he wa s ang e re d b y Cow an’ s c on sta

nt c ri tic ism , appellant points to the testimony of more tha

n one witness to the ef

fec t that he ca lmly

shrug g ed off Cowan’s c omplaints and went about his business. But the jury might reasonably conclude that even the c a lme st o f p e rs on s h a s a br e a kin g po int , a

nd tha t Co wa n h a d p us he d ap pel lan t pa st h is. Appellant also dismisses the money motive, saying that his wife stood to inherit from Cowan in any
c a se . B ut C ow an w a s o nly sixty y e ars old , a

nd pe rh a ps a pp e lla nt d id n ot w ant t o w a it. Appellant urg es that the re cord a s a whole doe s not support t h e co n cl u sion that Cowan was killed at t he Kingsland house, or even that her death was a homicide. Citing te stimony from fa mily members that Cowa

n was unpre dictable a

nd sometimes drank to excess, and pointing to Nash’s testimony

that she thought she saw Cowan in Ea st Texas in 2005, appellant sugg ests that it is not unrea sonable to believe that Cowan suddenly decide d to leave a

nd, for some r eason, ne ver
came back. T here was, howe ver, no e vidence sug g esting th at C o wa n might deliber ately abandon fa mil y and fr ie nd s w ith ou t a wo rd ; to the c on tr ary , the re wa s c on sid e ra ble e vid e nc e that sh e wo uld not do such a thing
. There was no evidence that Cowan suffe red f rom dementia of

any other 6

c on dit ion that mig ht h a ve c a us e d h e r t o s imp ly

wa nd e r o ff and ne ve r r e tur

n, and in a ny e ve nt i t is14

unlikely that she could have done so without lea ving some evidenc e of her activities. And Nash’ s
cer tainty in her identifica

tion of C owan appear s to have been stronge r i n 2007 than i t was in 2005. I t was not unrea sonable for the jury to give littl e we ight to this evidenc e. Appellant makes much of inconsistencies in the testimony reg ardingt h e r eleva nt dates. Stieler testified that she had dinner with Cowa

n on Sunday night. Appellant points out that Bob Holbrook testified that he discovere d the blood, paint trail, and damag e to the ca binets on that Sunday , which would sug g est that the injuries that Cowan suff ere d in the kitchen of the King sland hou s e w e r e in f

li c te d o n Satu

r d ay an d w e r e n o t f

a ta l. H o lb r o o k ’ s w if

e te s ti f ie d , h o w e v e r , that Holbrook discover ed the sig ns of the kitchen f rac as on a Tue sday , which is consistent with the theory that Cowan wa s killed at the house o n t h e M o n day following her dinne r with her g randda ug hter. Considering that the witnesses we re attempting to re call eve nts six y ear s after they happene d, the inconsistencies c ited by

appellant a

re not surpr ising a

nd do not cast ser ious dou b t on the jur y ’s ve rd ic t. Appe l l an tal s o u rge s t h at t h e s m al l am o u n to f b l o o d fo u n d i nt h e K i n gs l and house was incons i s t en t wi t h the State’s theor y that Cowan wa s beate n to death at the house , and is more
c on sis te nt w ithhis c la im that Co wa n c ut h e rs e lf

duri ngan a

rgume nt. I n f

a c t, i t is impos sib le to know exactly

how much blood was on the floor of the house because the paint obscure d it. Even so, the amount of bleeding shown by the evidence seems to be far more than would be ex pecte d from a cut f inge r. Appe llant does not sugg est why , if his story about the ar g ument and the c ut fing er w ere true, he attempted to hide C owan’ s blood, nor does he sug g est any rea son for someone else to do so.15 Finally , appellant a g ain points to Rus sell as t h e gu i l ty party . We have a lrea dy discussed this theory , and we will not repeat our discussion here . I t is suffici en t to say that the
e vid e nc e pr e po nd e rate s a g a ins t it
.

Considering the re cord a s a wh o le in a neutra l light, the evide nce suppor ting the jur

y ’s verdic t is not so wea

k as t o make the finding of guilt clea rly wrongand manife stly

unjust. The jury ’s verdic t is not aga inst the gr eat we ight a nd preponde ranc e of t he ava ilable evidenc e. I ssue two is overrule d.
VENUE

O v e r a p p e ll an t’ s o b

je c ti o n , th e tr ia l c o u rt i n s tr u c t e d t h e j u r y a t t h e g u il t s ta g e th a t “ [i ]f a per son rec eives a

n injury in one county

and dies in another by rea son of such injury , the offe nder may be pros ec u t ed in t he county wher e the injury

was re ceive d or whe re the death oc curr ed.” See Te x. Cod e Cr im. P roc . A nn . a rt . 1 3. 07 (We st 2 00 5) . App e lla nt a rgue s th a t be c a

us e thi s instruction was g iven, the Stat e was bound to prove that venue w as prope r under the statute. See Mu rp hy v . S tat e , 112 S.W .3d 592, 605 (Tex. Crim. App. 2003) (“Ve nue will stand if it is sufficient under a ny one of the venue pr ovisions the jury was instructe d upon”)
. Ap p ellant ar g ues that the State fa i l ed t o p ro v e that venue was c orre ct under article 13.07 beca

use there is no evidence that C o w anw a s i n

j u r e d i ns o m e o t h e r

c o u n t y an d

t h e nd i e d i nL l an o C o u n t y. Assuming f

or th e s ak e o f t his opinion t hat the State wa s require d to prove ve nue under a rticle 13.07, it met t h at burden. Appellant’s a rg ument confuse s the predic ate f or invoking article 13.07—injury

in one county , death in another —with the venue fac t that must be proved. The preponde ranc e of the evidenc e shows that Cowan r ece ived her fata l injuries at the King sland house,16

in L l an o C ounty
. See Tex. Code Crim. P roc. A nn. art. 13.17 (West 2005) ( burden of proof)
. Th e re fo re , un de r art ic le 13 .0 7, ve nu e wa s pr op e r in L lano County wh e the r C ow an d ie d th e re or in some other c ounty . I ssue three is overrule d.

The judg ment of convic tion is affirmed.

__________________________________________ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Pury ear and He nson Affir med Filed: May

6, 2009 Do No t Pu

bli sh